Geoff Budlender on the limits of the law under occupation

On 8 April 2010, Open Shuhada Street launched our 2010 lecture series at the Book Lounge in Cape Town. Advocate Geoff Budlender gave the first lecture. The discussant was Fatima Hassan (formerly of the AIDS Law Project and currently advisor to the Minister of Public Enterprises) and the meeting was chaired by Nabeelah Martin (Open Shuhada Street board member).

Here are Budlender's notes of his lecture:

The limits of the law: Practising law under occupation

(Notes for a talk on 8 April 2010)

1. Just under two years ago, I was a member of the South African Human Rights delegation that went to Israel and the occupied territories.

2. One of the people who came to talk to our group was an Israeli human rights lawyer, Michael Sfard.  He gave us a fascinating talk about the Israeli policy of separation which had been developed and implemented in the West Bank since the 1990s – since the two Intifadas, which had shattered the policy of the unification of the lands.  He described five phases or elements of the separation on the West Bank.

3. The first separation was a prohibition on the entrance of Palestinians into the Jewish settlements on the West Bank. 

4. The second separation was the creation of special security zones on the West Bank, which Palestinians need permits to enter – even if their own land is situated in that zone.

5. The third separation was brought about by the separation barrier or wall, which encloses some parts of the occupied territory.  This created what was called a “seam zone” between the green line (which constitutes the internationally accepted boundary of Israel) and the wall.  A new legal barrier had to be created to match the physical barrier which had been created by the wall.  He explained that this legal barrier consisted of a general prohibition on anyone entering the seam zone – and that there is then a series of exceptions to that prohibition.  That led to an extraordinary and virtuoso explanation of a complex system of rules about who is exempted, who needs a permit, the circumstances under which a permit will be issued, and so on.  He described some of the legal challenges which had been brought, and how the rules operate.  I think we all gasped at the intricacy and complexity of this system of control. 

6. The fourth separation was the creation of a system of separate roads and separate electricity and water networks within the West Bank.  This led to an explanation of the “bypass” roads, which may be used only by Israeli vehicles, and which provide a quick and effective means of moving between the settlements on the West Bank, and moving from these settlements to Israeli territory.  The “bypass” roads are to be contrasted with the “fabric of life” roads, to which Palestinians are restricted between their towns and in the West Bank.

7. And then finally he referred to the fifth separation, namely the operation of separate legal systems: the extra-territorial application of Israeli law to Israelis in the West Bank, and the use of military law for the Palestinians living in that area.

8. He referred to some of the cases that had been fought in the courts, including the Supreme Court, which exercises jurisdiction over the occupied territories – and to some of the successes which have been achieved by human rights lawyers.

9. And then he closed with a striking comment – that the occupation of the West Bank had been “koshered” by the Supreme Court, and that there was an ambiguity to the successes which the civil rights’ groups have achieved – that the human rights groups fear that their work, and especially their successes, may lend legitimacy to the occupation, and sometimes create a more sustainable occupation, by smoothing some of the sharp edges.

10. Michael’s Sfard’s talk was a brilliant account of the law and the jurisprudence.  I also found it deeply familiar, and unsettlingly so – because it reminded me so strongly of the work which lawyers did under apartheid, the talks which we gave to visitors to South Africa, and the ambiguity which sometimes surrounded our work.

11. The ambiguity which we experienced in legal work under apartheid, and which the Israeli human rights lawyers were and are experiencing, arises from the very nature of law – and from the use of law as a means of exercising repressive or discriminatory power.

12. Professor Otto Kahn-Freund, the great labour lawyer, wrote illuminatingly about the functions of law in his book “Labour and the Law”.  He explained that the law is two-edged, or has a dual function:

12.1 On the one hand, it regulates the exercise of power, both public power and private power. The regulation of the exercise of power is the core function of law.

12.2 And simultaneously, by regulating the exercise of power, the law also legitimises that power.

13. E P Thompson, the great English historian, explained one of the fundamental consequences of this double function of rule through law, in his account of the relationship between State absolutism and the courts of 18th century England.  He said the following in his book “Whigs and Hunters”:
“The essential pre-condition for the effectiveness of law, in its function as ideology, is that it shall display an independence from gross manipulation and shall seem to be just.  It cannot seem to be so without upholding its own logic and criteria of equity; indeed, on occasion by actually being just.”

14. Seen in that light, the “victories” which are achieved by compelling the law to operate justly, have this double-edged quality of legitimising the power which is exercised through the law.

15. This was a matter which sometimes greatly troubled human rights lawyers who worked in apartheid South Africa: did the use of the law, and paradoxically particularly the successes in using the law, legitimise the apartheid exercise of power?

16. For myself, I relied on three main arguments in justifying the continued practice of law under a fundamentally repressive and unjust system.

17. First, we had clients who wanted us to represent them.  It was for them to make that choice - and not for us, as a privileged group of people who were not feeling the sharp end of the system, to say that it was not in their best interests to do so.  That was an answer which provided some satisfaction, although it continued to beg the question of the overall consequences of the work which we were doing.

18. Second, we reminded ourselves – or I reminded myself – that the use of the law was sanctioned by the major liberation movement.  ANC leaders and members, and their support organisations, consistently turned to lawyers and the law to assist them.  Legitimate community leaders (rural and urban) and trade union leaders demanded these services.  They had plainly made a political judgment that the gains which they could obtain through the use of the law outweighed the negative consequences or risk of legitimising apartheid power through participating in the process.  If they were making that choice, it was not for us as lawyers to second-guess them.  That argument started to weaken at a certain point when some people charged with offences under the “security” legislation refused to participate in their trials, on the basis that this was fundamentally unjust and/or that they were prisoners of war.  I recall the case of James Mange, who with great bravery turned his back on the court and refused to participate in his prosecution under the Terrorism Act; and more recently we have been reminded by Peter Harris, in his book “In A Different Time”, that the accused in the “other” Delmas trial, facing the death penalty, took a similar position.  These however remained exceptions rather than the rule.

19. The third justification on which at least I relied, drew from another observation by the historian E P Thompson.  He said:
“People are not as stupid as some structural philosophers suppose them to be.  They will not be mystified by the first man who puts on a wig.”  [referring of course to the practice of English judges to wear a wig]

20. In other words, black South Africans did not need anyone to explain to them that apartheid was fundamentally unjust, and that the battles which we were fighting in the courts did not change that position, even if the case was won.  They could see that every day of their lives.

21. At least for me, all of those justifications functioned more or less successfully, and enabled me to go about my life without being in a permanent state of existential angst.

22. There was, however, a time when I began to have grave doubts about this approach.  It was in the 1980s, during the second state of emergency.  Under the Public Safety Act, the State President had the power to make virtually any law he wanted, simply by edict.  It was increasingly difficult to sustain the fiction that this amounted to “law” in anything except the formal sense, given the manner of making the rules, and the virtually unlimited scope for making them: the law was whatever the State President happened to say it was on any particular day.  And he was aided and abetted in this by the then Chief Justice and the Appellate Division.  The Chief Justice shamelessly manipulated the membership of the courts which heard appeals arising out of the state of emergency and related matters, so that only “reliable” judges were appointed – and they almost always delivered a “reliable” judgment.

23. What had happened, in other words, was that there was now real reason to doubt whether this system was functioning under law at all - because there was no effective control on the exercise of official power.  The essential function of law had been lost.  Under those circumstances, could one really continue to pretend to be practising law?  Had we reached the limits of the law?

24. Ultimately, this existential angst was brought to an end by the sudden and rapid process of political transition.

25. But sitting in Israel two years ago, the same questions struck me as Michael Sfard was talking, and as we learnt more about the situation as we moved about the area.  (I need to say that through this analysis, I am not contending that the occupation of the West Bank is a form of apartheid.  That is another question, for another day, and I hope for another speaker.  What I am saying is that the South African experience of practising law in a fundamentally unjust system, illuminated for me the problems of practising law in what I regard as another fundamentally unjust situation, namely the occupation of the West Bank.)

26. It is important, in this context, to appreciate the contradiction in which Israel finds itself trapped as a result of this long-running occupation.  It was a contradiction which only became apparent to me on that visit.

27. Under Israeli law, let alone under international law, the occupied territories are not part of Israel.  Israel has not purported to annex them.  There are at least two fundamental reasons for this.  First, any annexation would lead to such an international outcry that Israel’s position would be substantially weakened.  And secondly, and perhaps even more fundamentally, the annexation of the occupied territories would make the Palestinians who live there citizens of Israel, with equal rights in Israel.  The politics and the demography of Israel would change radically and dramatically, and it would become practically impossible to sustain the concept of a Jewish State.

28. And so, Israel has to maintain the position that the West Bank is occupied territory.  It maintains this position even though some parts of the government regard it as land to which Israel is entitled, under the concept that these are historically the Jewish areas of Judea and Samaria.  This is territory which was occupied as a result of what Israel contends was a defensive war – and if I understand it correctly, contends that the land is part of Jordan in the case of the West Bank, and Egypt in the case of the Gaza strip.

29. One has to say, at the outset, that this is an extraordinary occupation.  It has now lasted for more than 40 years.  I am not an expert on military history, but I hazard a guess that this is the longest military occupation in modem history. 

30. The concept that the land is foreign, but occupied by what are referred to in international law as “belligerent forces”, has very large legal consequences.  Three in particular are of significance for what I have to say.

31. First, as a matter of international law, Israeli law does not apply in the occupied territories.

32. Second, the occupied territories are primarily under military and not civilian control.  The military have vast powers to make laws – by decree.

33. Third, the Palestinians living in the area have special protection under international law.  They are regarded as “protected people”, namely civilians who are living in an area which is under military occupation.  Whether you treat this as a matter of the application of the Fourth Geneva Convention of 1949, or as a matter of the customary international law of nations, there is no doubt that they are “protected people”, with a special status, and that the Israeli military are subject to limitations as to how it may treat them.  This is accepted by the Supreme Court of Israel.

34. The military commander has an obligation to maintain public order and life for the benefit of the protected persons of the occupied territory.  And Israel is not entitled simply to annex and use the natural resources of the occupied territory, including its land.

35. It seems to me pretty obvious that against those principles, it is very difficult to justify the regime which operates in the occupied territories.  This is particularly so where Israeli citizens have settled in the occupied territory, often with the active support and in most other cases with the passive support of the Israeli government and the military commanders.  An occupying power is not entitled to use the occupied territory as a place to settle its citizens.  The resources do not belong to the occupying power.

36. This all sounds well and good.  However, we know how courts almost everywhere respond when they are called upon to pass judgment on the conduct of the security apparatus in a situation of war, or a perceived threat to the safety of the state which they represent.  Almost invariably, and almost without exception, they close ranks with the authorities and support the authorities in what they are doing.

37. That is at least a partial explanation of the way in which the South African courts defended and protected the state of emergency during the 1980s.  They thought that the control of power was under threat, and they closed ranks.  It is particularly striking that this pro-state approach to “security” matters contrasted quite sharply with a simultaneous accommodating or liberal approach in legal challenges to features of the apartheid state such as the pass laws, forced removals, and the segregation of public facilities.  Those cases were not perceived as threatening the security of the state.

38. The same phenomenon was seen in the UK during the Second World War.  There, in the now notorious case of Liversidge v Anderson, the House of Lords upheld a patently unlawful internment order, in the face of a famous dissent by Lord Atkin.  Some, somewhat cynically, described the judgment as the contribution of the Law Lords to the war effort.  The House of Lords has now recognised that the decision was plainly wrong.

39. We have seen the same phenomenon in the USA.  There, the most famous Supreme Court decision of this kind was in the Korematsu case during the Second World War.  In that case, which again dealt with internment, the Supreme Court upheld an internment policy and interment actions which were flagrantly discriminatory and in breach of the Bill of Rights.  It has been said that the case of Rasul v Bush, which the US Supreme Court decided in 2004, dealing with the imprisonment of non-US citizens in Guantanamo Bay, was the first time the US President ever lost a major civil liberties case in the Supreme Court during wartime.  It is of course a somewhat different sort of war.

40. One can understand why this is so:  when judges believe that the very survival or integrity of the state is at risk, they move to protect the state, as they are part of the state apparatus.

41. The Supreme Court of Israel is a court which has adopted international human rights standards, and which has creatively applied them in situations in which Israeli law does not explicitly make them applicable.  The Court has struggled, however, to apply these principles in “security” matters, particularly where they are raised in the context of decisions made as part of the occupation of the West Bank.  The dilemma of the judge was starkly and plaintively expressed by the Judge Cheshin, the Vice-President of the Supreme Court in a case which some refer to as the “human shield” case, and others refer to as the “early warning” case.  It dealt with the procedures which were used by the Israeli military in conducting searches in the occupied territories.  The Vice-President of the Court said the following in his judgment:
“The subject is a difficult one.  Most difficult.  So difficult is it, that a Judge might ask himself why he chose the calling of the judiciary, and not of another profession, to be busy with.  Woe is me, for I answer to my creator; woe is me, with my conflicting inclinations (see Babylonian Talmud, Brachot, 61, 1).  No matter which solution I choose, the time will come that I will regret my choice.”
He referred to this as a case where interests and values of the first degree stood opposite each other, and deciding which interests and values would prevail, and which interests would retreat, was hard - unbearably hard.

42. This tension and ambiguity is perhaps most clearly illuminated in a case in which the Supreme Court of Israel recently gave a judgment.  The case concerns a road known as “Route 443”, and has been before the Supreme Court for nearly three years.

43. Route 443 is a road which connects Jerusalem and Tel Aviv.  It passes through the West Bank – through the occupied territory.

44. In 1982, the military commander of the West Bank expropriated certain land which is situated in the West Bank.  He did so in order to implement a road building plan which involved the highway now known as Route 443.  The land had previously been acquired by an association on the West Bank, for the purpose of constructing residential units for member teachers.  The association lodged a petition challenging the decision to expropriate its land.  In response, the military commander contended:
“In factual terms … the goal of the road plan is to serve the needs of the region.  It will enable a fast link among the settlements among the settlements of Judea and Samaria.  It will serve the local population of Ramallah, Birnaballah, Gadira, Nabi Samuel, Beit Iksa, Beit Hanina, Biddu, Rafat and Bethlehem. … The respondents emphasised that the roads in Judea and Samaria were outdated, and could no longer bear the large number of vehicles using them. … This growth, according to the respondents, necessitated the planning and construction of a new system of roads.”

45. In that case, the Supreme Court accepted the account given by the respondents.  It stated that it was satisfied that the considerations taken into account by the respondents were regional considerations and not Israel’s needs alone.  The Court had no doubt “that Israel’s concerns and civil needs were not the basis of the road plan. … Under these circumstances, the military authority is authorised to invest in basic improvements and carry out long-term planning for the benefit of the local population. … Of course, the roads will remain even after the military authority comes to an end, but this is of no significance.  This plan in no way blurs the line between military and civil authority.  The fact that this project will be implemented in co-operation with Israel in no way invalidates the plan, on condition that it is carried out for the benefit of the local population.”

46. This approach was consistent with the international law regarding the duties of occupying authorities with regard to the local “protected population”.

47. However, the situation changed quite soon.  In 1988, after the outbreak of the first Intifada, the Israeli authorities altered the route of the road in some sections, and widened it, with the aim of ensuring the security of Israelis travelling on it, in part by preventing them from passing through Arab villages.  The route of the road was shifted in several places, and the road was widened.  For this purpose, further lands belonging to Palestinian residents were expropriated.  The authorities stated that the road, now to be called  Route 443, would serve Israelis and Palestinians alike.

48. Subsequently however, from about 2000, only Israelis were permitted to use the road.  This was first done without a clear legal basis.  When it was challenged, an order was issued by the commander of the Israeli Defence Force in the area.  He declared that no person was permitted to travel on Route 443 in a non-Israeli vehicle, i.e. a vehicle not registered in Israel or bearing identifying marks acquired in Israel - unless a special permit had been granted.

49. A different military order states that Palestinians may not drive vehicles with Israeli licence plates.  The nett effect is to prevent any Palestinians from driving vehicles on this road which passes through the West Bank, except with a special permit.

50. A fresh challenge was brought to the Supreme Court in 1997.  The defence put up by the military was that the road had been closed for security reasons, as a result of attacks that had taken place along the route of the road.

51. On 29 December 2009, the Supreme Court granted the petition in part.  By a majority of two to one, it held that the power of the military commander to impose traffic restrictions by virtue of his duty to preserve public order and security does not extend to imposing a permanent and complete ban on the traffic of Palestinian vehicles on the road.  This is because a complete ban makes the road one that is used solely for “internal” Israeli traffic – between the centre of Israel and Jerusalem – rather than one that serves the needs of the local population, this even though land was expropriated from the inhabitants of the territories in order to construct it.  The Court held that a complete ban exceeded the authority of the military commander, and was inconsistent with the rules of international law regarding a belligerent occupation.  The Court emphasised that the judgment did not determine future security arrangements, which would be determined by the military commander, in a manner that would provide protection for the Israeli inhabitants using the road.  The judgment would come into effect five months after the date on which it was given, in order to allow the military commander to determine the necessary security arrangements.

52. The judgment provoked anger on the part of some in Israel.  Some members of the Knesset (Parliament) proposed that the land in question should be annexed by Israel.  The intention would be to remove Israel’s obligations under international law to “protected persons” in that part of the occupied territory, because the land would no longer be occupied territory.

53. However, the judgment was in fact rather ambiguous.  First, the Court did not order the military to open the Bitunya Road, which connects the road to Ramallah – a major town, which is the seat of the Palestinian Authority - for security reasons.  A proper reading of the judgment shows that the Court allowed the IDF to impose different security measures, as long as these do not amount to a total prohibition on the use of the road.  The IDF has announced that it is going to build new roadblocks along the road - on more Palestinian land - and that every Palestinian will pass a security check before being allowed to go onto it.  Limor Yehuda, the attorney for the applicants, describes the case as “a partial victory, and mainly a legal victory, since the interpretation of it on the ground is much more problematic”.

54. So there is the ambiguity in its full glory.  When the human rights delegation was undertaking its visit, we were able to travel on Route 443.  We were in an Israeli-registered vehicle, and we were foreign visitors.  We had greater rights than the people through whose land the road had been constructed, and in whose territory the road runs.  Israelis and foreign visitors, for their convenience, can use this road in the Palestinian territory, for which Palestinian property was expropriated, but Palestinians may not use it.  The position seems bizarre, and at least to some extent it seems likely to continue.  In the words of Michael Sfard, the Supreme Court judgment may smoothe some of the sharp edges, and may take some of the “sting” out of the situation without addressing the fundamental underlying injustice.

55. But this is what one should expect if one practices law under military occupation. I have already referred to the fact that the Israeli courts are not unique in their response to a situation of war or one which is perceived as war.

56. So one comes back to the question posed by Michael Sfard, which is also the question which human rights lawyers in South Africa often posed themselves during the apartheid years: can a conscientious lawyer practice law in a fundamentally unjust system?  Where the law-maker rules by decree, which is virtually unlimited in its scope, what are the implications for the practice of law?  Does one nevertheless persist in the work, partly in order to ameliorate the situation and partly to dramatise and publicise it, or should one turn one’s back on the situation and take a non-participatory stance?

57. In South Africa, we had the ultimate comfort – our participation was in effect sanctioned and welcomed by liberation movements which had demonstrably wide legitimacy, and by popular leaders of integrity and authority.  The matter is of course not so simple in Palestine, where one looks hopefully for a clear moral voice with widespread legitimacy amongst the people for whom it proposes to speak.

58. These questions have arisen not only in South Africa and in the occupied territories.  They have arisen in other unjust systems, where lawyers struggle to define their role.  For my part, I would be inclined to take the view that if one can achieve some material improvement on the ground, and if one can illustrate and dramatise and publicise the injustice of the underlying situation, then the advantage of participation will often be greater than the legitimacy which one lends to the system by participation.  Certainly as far as the local people are concerned, I would be inclined to adopt the view of E P Thompson, that their daily lives are such that they will certainly not be fooled by a judgment of a court into believing that the harsh circumstances under which they live are justified, merely because the Supreme Court of Israel has said so.